The Standard Has Been AlteredDoes Attorney-Client Privilege Protect Public Records?
By Calon Russell, Peter Jarvis and Roy Pulvers

Imagine this scenario. You are an ordinary citizen who suspects
the city parks and recreation bureau of widespread corruption. You finally
succeed in getting city council to hire an attorney to investigate. Upon
completion of the investigation you contact a city council member to discuss
the results. She discloses a significant amount of information to you. Although
you are disturbed by this information, the city is not. The city takes no
remedial action and issues a press release stating that no wrongdoing was
uncovered. Your best chance to advance your cause is by demanding public
disclosure of the results.

Based on Oregon Senate Bill 671, you may be out of luck. This
amendment to the state public records law applies to public records created
on or after the date the bill took effect, June 20, 2007.

Background
Senate Bill 671 addresses the issues raised in Klamath County School District
v. Teamey, 207 Or App 250, 104 P3d 1152 (2006) rev. denied 342
Or 46, 148 P3d 915 (2006), namely the tension between attorney-client privilege
and the public’s right to access government records. In June 2000,
Klamath County residents attended a school board meeting and presented allegations
of misconduct and mismanagement by district employees. In response to these
allegations, the district’s outside counsel recommended and conducted
an investigation. His investigation involved hiring an auditor and an investigator,
each of whom produced a report. He then discussed these reports with the
school board in December 2000. In January 2001, the district issued a press
release stating in part:

There are a few of our district policies that need to be strengthened
and our purchasing procedures need to be reviewed. This is now being accomplished
and will be monitored by the superintendent. We also believe the charges
against the district administrators are not substantiated and we believe
there is clear evidence of no wrongdoing!

Klamath County, 207 Or App at 255.Two
months later defendant Teamey requested copies of the reports; the superintendent
denied his request. Teamey then petitioned the district attorney to order
compliance with Teamey’s request. The district attorney
ordered the school district to submit the reports to him for review;
the district did not comply. He then ordered the school district either
to submit the reports to Teamey or to seek declaratory relief. The district
chose the latter.

The Case
The Klamath County Circuit Court held that the reports were privileged.
On appeal the Oregon Newspaper Publishers Association (ONPA) joined by
24 newspapers and the Associated Press filed an amicus brief on the defendant’s
side. Nevertheless, the decision was upheld. The ONPA was subsequently
involved in the effort that resulted in Senate Bill 671.

Potential Issues of Statutory Interpretation
Our hypothetical is somewhat similar to the Klamath County case; it
is designed to highlight some of the provisions of the bill that may lead
to statutory interpretation issues.

The key provisions of the bill amend ORS 192.502(9), which
exempts from public disclosure public records and information that are privileged
under Oregon law. The legislature added a new exception, ORS 192.502(9)(b),
requiring disclosure of "factual information compiled in a public record" when:

(A) The basis for the claim of exemption is ORS 40.225 [attorney-client
privilege];

(B) The factual information is not prohibited from disclosure
under any applicable state or federal law, regulation or court order and
is not otherwise exempt from disclosure under ORS 192.410 to 192.505 [Oregon
Public Records law];

(C) The factual information was compiled by or at the direction
of an attorney as part of an investigation on behalf of the public body in
response to information of possible wrongdoing by the public body;

(D) The factual information was not compiled in preparation
for litigation, arbitration or an administrative proceeding that was reasonably
likely to be initiated or that has been initiated by or against the public
body; and

(E) The holder of the privilege under ORS 40.225 [OEC 503]
has made or authorized a public statement characterizing or partially disclosing
the factual information compiled by or at the attorney’s direction.

In Klamath County, the court had interpreted the language
in section 9(a) as a catchall privilege exemption from disclosure. Senate
Bill 671 carves out a narrow exception to this rule when a holder of the
privilege has made or authorized a public statement of a certain character,
and creates an additional attorney-client privilege analysis.

Based on these provisions, several issues of interpretation
may come up in our hypothetical. The first issue involves the meaning of "factual
information." The remaining issues involve interpreting subsections
(C) and (E).

What Constitutes Factual Information?
"Factual information" is not defined in Senate Bill 671. Nor is it
defined elsewhere in Chapter 192. Given the breadth of information potentially
gathered in an investigation, parsing out factual information could be difficult.
For example, would allegations made by parks and recreation employees
constitute factual information? Further, this issue would likely come
up under Section 2 of the bill, which allows public bodies subject to disclosure
under these provisions to release a condensation of the "significant facts" uncovered
in the investigation without further waiving the privilege.

Who Compiled The Factual Information?
In our hypothetical, as in Klamath County, an attorney conducted the
investigation. The likely issue under subsection (C) is whether a given fact
was compiled "at the direction of an attorney." For example, if
an accountant working under an attorney acquires information outside the
scope of the attorney’s directions, would that information be privileged?
Similarly, if the accountant hired an assistant, would the assistant be working "at
the direction of an attorney"?

Who Is The Subject Of The Investigation?
Subsection (C) is unclear with respect to the context and meaning of
the term "the public body," when it provides for disclosure of
factual information compiled "in response to information of possible
wrongdoing by the public body." Assuming that the statute refers to
wrongdoing committed by the public body, then how should the term "public
body" be interpreted? Does it refer to the government body itself
or, rather, to individuals who may be authorized to act on behalf of the
government (officials or certain employees), or does it extend to cover
lower-level governmental employees? Does it include the conduct of a single
elected official, such as a county commissioner, who may be a constituent
member of a public body but who may not have any authority to act as an
individual on behalf of the public body?

How Much Was Disclosed Following The
Investigation?
This question (as well as the next two questions) gets at whether the
privilege was waived under subsection (E). It seems unlikely that the press
release alleging no wrongdoing could be construed as "characterizing
or partially disclosing" factual information. In contrast, the plaintiff
school district in Klamath County issued a press release stating, inter
alia, "[t]here are a few of our district policies that need to be
strengthened and our purchasing procedures need to be reviewed." Klamath
County, 207 Or App at 255. This statement seems closer to a waiver under
subsection (E), but it would not likely be a waiver under the traditional
OEC 511 test, which requires that a "significant part of the matter
or communication" be disclosed. In fact, although this issue was not
preserved on appeal in Klamath County, the circuit court ruled that
the statement did not waive privilege. Klamath County School District
v. Teamey, Klamath County No. 03-00627CV at 10 (August 17, 2004).

Who Was Responsible For The Disclosure?
Even if a statement "characterizes or partially discloses" factual
information, the privilege may remain intact. For example, in our hypothetical,
even though the city council member disclosed a significant amount of information,
there is still an issue as to whether she is "the holder of the privilege." Would
a majority, or even all of the city council members have to consent to the
statement?

To Whom Was the Disclosure Made?
Finally, even if the city council member was the holder of privilege,
her statement may not have been a "public statement," because
it was made to a single person over the phone. Does a "public statement" require
a certain size or type of audience or a certain type of forum? This issue
might also come up in situations where the press is allowed to sit in on
an executive session. The presence of the press points toward a "public
statement," but the exclusive nature of such sessions suggests a private
statement.

Conclusion
Senate Bill 671 alters attorney client privilege standards for public
bodies seeking to withhold records of internal investigations. In order
to assert this privilege, public bodies must be careful in disclosing any
information related to such records. However, so long as the records are
not "characterized or partially disclosed" to the public, public
bodies may be able to withhold any such records by simply hiring an attorney
or utilizing the government body’s legal counsel to direct the investigation.

ABOUT THE AUTHORCalon Russell is a law clerk in the Portland office of Hinshaw and Culbertson.
Peter Jarvis and Roy Pulvers are partners in the firm.